In re Dean

27 Wash.App.2d 265

537 P.3d 1040

In the MATTER OF Personal Restraint of Franklin D. DEAN, Jr.

No. 38934-1-III

Court of Appeals of Washington, Division 3.

July 27, 2023

Ordered Published Date September 7, 2023

Gregory Charles Link, Christopher Mark Petroni, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Petitioner.

Timothy Norman Lang, Office of the Attorney General of Washington, 1125 Washington St., Se, Olympia, WA, 98501-2283, Keith Aguero Hines, Office of the Attorney General of Washington, P.O. Box 40100, Olympia, WA, 98504-0100, John Joseph Samson, Office of the Attorney General of Washington, 1125 Washington St., Se, P.O. Box 40116, Olympia, WA, 98504-0116, for Respondent.

Fearing, C.J. ¶1 This personal restraint petition addresses another collateral issue arising from the Washington Supreme Court's landmark decision in State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021). When an offender serves two consecutive sentences for separate crimes, the first of which crimes was possession of a controlled substance, may the time spent incarcerated for the drug crime be credited as time served against the sentence for the second crime once the trial court vacates the drug possession conviction? We answer in the affirmative and grant Franklin Dean's petition.

FACTS

¶2 In May 2011, Franklin Dean pled guilty to unlawful possession of a controlled substance. The Chelan County Superior Court waived imposition of a sentence within the standard range and imposed a sentence under the drug offender sentencing alternative (DOSA) program. The DOSA sentence ordered Dean to serve twenty-four months in community custody while undergoing treatment for the possession charge.

¶3 In June 2011, while serving the DOSA sentence in community custody, Franklin Dean committed a robbery and burglary. We refer to the two crimes collectively as a "robbery." Authorities placed Dean in the Chelan County Jail, where he remained until his trial on the new charges. On August 6, 2012, a jury convicted Dean with robbery for the criminal behavior in June 2011. Because of the new convictions, the superior court revoked Dean's DOSA sentence and imposed a twenty-four-month term of confinement for the earlier crime of drug possession. The court also imposed a 180-month, or fifteen-year, term of confinement for the robbery conviction and ordered the sentence to run consecutively to the drug possession sentence. Because of the length of the sentences, Dean transferred from the Chelan County Jail to custody with the Washington State Department of Corrections (DOC).

¶4 When DOC assumed custody, the Chelan County Jail sent DOC a certification that Franklin Dean had served 475 days in jail under both the drug possession conviction and the robbery prosecution. DOC ran Dean's sentence for possession of a controlled substance first and applied the jail's time-served credits only to that sentence. Thus, it credited all 475 days against the drug possession sentence. When accounting for the time spent in the Chelan County Jail as well as good time credits, DOC ended Dean's drug possession sentence on August 24, 2012 and began his fifteen-year sentence for the robbery conviction on the same date.

¶5 In State v. Blake , 197 Wash.2d 170, 195, 481 P.3d 521 (2021), the Washington Supreme Court held that Washington's drug possession statute, which imposed strict liability, violated the due process clauses of the state and federal constitutions. The Supreme Court held the statute void. Pursuant to Blake , Franklin Dean's conviction for simple drug possession has always been void. State v. French , 21 Wash. App. 2d 891, 894, 508 P.3d 1036 (2022).

¶6 Following State v. Blake , the Chelan County Superior Court entered an order vacating and dismissing Franklin Dean's conviction for drug possession. The court's order partly read:

The defendant shall be immediately released from any custody and from any supervision pursuant to this cause number [the drug possession prosecution]. The clerk's office shall provide the Chelan County Regional Jail and the Department of Corrections with a copy of this order.

Resp. of the Dep't of Corr., Biller Decl., Attach. E at 1. Thereafter, DOC gave Dean no credit for time served, before August 24, 2012, against the robbery convictions sentence, August 24 being the date on which its accounting for the drug possession conviction sentence ended.

PROCEDURE

¶7 Franklin Dean filed this personal restraint petition, by which he seeks a ruling that DOC must change his release date for the robbery conviction to account for the time he spent confined beginning in June 2011 when law enforcement arrested him for the robbery. Dean also filed a motion for immediate release, which this court granted. We wrote:

The court has determined during its preliminary workup that Mr. Dean is entitled to relief in this matter. The court will release an opinion at a later date explaining its decision in this matter.

Order Granting Petitioner's Motion for Release, In re Personal Restraint of Dean , No. 38934-1-III (Wash Ct. App. Jan. 18, 2023).

LAW AND ANALYSIS

¶8 In response to Franklin Dean's personal restraint petition, DOC argues that, because under law, the offender must first serve time for the earliest conviction, it should not credit Dean, against his burglary and robbery sentence, for time spent confined until the drug possession sentence ended on August 24, 2012. In so arguing, DOC relies on RCW 9.94A.589(2)(a), which declares:

Whenever a person while under sentence for conviction of a felony commits another felony and is sentenced to another term of confinement, the latter term of confinement shall not begin until expiration of all prior terms of confinement.

DOC insists on following this first in time statute despite the first conviction being vacated and the law creating the crime of the first conviction being declared void.

¶9 Franklin Dean cites Montgomery v. Louisiana , 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), for the proposition that, when a " ‘State had no power to proscribe the conduct for which the petitioner was imprisoned, it could not constitutionally insist that he remain in jail.’ " 577 U.S. 190, 202, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (quoting Desist v. United States , 394 U.S. 244, 261, n.2, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting)). Dean would extend this proposition to require that, when an offender has served time under a constitutionally voided conviction, that offender should receive credit on a subsequent sentence of confinement.

¶10 Franklin Dean also cites the proposition that an offender is constitutionally entitled to credit for time spent in confinement prior to a sentence ordering confinement. State v. Enriquez-Martinez , 198 Wash.2d 98, 101-03, 492 P.3d 162 (2021). He reasons that, since he should have never been jailed for his possession of a controlled substance, all time in jail beginning in June 2011 should be applied against his robbery conviction. Although Dean's two forwarded propositions do not directly address our issue, we rely on the two propositions together with reason and fairness to grant Dean his requested relief.

¶11 DOC first argues that it lacked authority to allocate credit to Franklin Dean's sentence under the Chelan County Superior Court's order vacating and dismissing Dean's conviction for simple drug possession. DOC emphasizes that the court order did not command subtraction of the simple drug possession confinement term from the robbery and burglary sentence. We rejoin that the superior court order did not expressly prevent DOC from crediting the time served against the robbery convictions.

¶12 DOC asserts that it may not alter a judgment and sentence on its own. Dress v. Department of Corrections , 168 Wash. App. 319, 326, 279 P.3d 875 (2012). We agree, but deem no alteration of the judgment and sentence is...